The Code of Criminal Procedure, 1973 (CrPC), guides search and seizure practices in India’s criminal justice system. Search warrants, issued by judicial magistrates or courts, enable law enforcement to collect evidence while respecting privacy. Section 93 of CrPC permits warrants based on a reasonable belief of evidence presence. Section 94 allows searches for stolen property or forged documents. Presence of witnesses (Section 100) ensures transparency, while Section 165 allows warrantless searches under certain conditions. The exclusionary rule (Section 165(4)) prevents illegally obtained evidence from use. These safeguards maintain the balance between law enforcement and individual rights, fostering a just criminal justice system.
Introduction
The investigation and prosecution of criminal offences in India are governed by the Code of Criminal Procedure, 1973 (CrPC), a comprehensive piece of legislation. It establishes the powers and safeguards surrounding search and seizure, which are crucial elements in ensuring effective law enforcement while protecting individual rights. This article examines the search and seizure sections of the CrPC, emphasizing the authority given to law enforcement officials and the protections put in place to avoid misuse of those authorities. This article tries to offer a thorough overview of the legal framework governing search and seizure in India by reviewing the pertinent portions of the CrPC.
Powers Of Search And Seizure
Throughout history, search and seizure powers have been intrinsic to legal systems across the globe. These prerogatives have their origins in early legal traditions, when authorities were given the freedom to look for evidence for the sake of justice. These authorities have developed throughout time in recognition of the significance of finding a balance between criminal justice goals and defending people’s rights. They provide law enforcement organisations the ability to acquire information, pinpoint suspects, and establish the truth in criminal investigations. By authorizing searches and the seizure of relevant items, such as weapons, drugs, or stolen property, these powers enable the successful prosecution of criminals.
Search Warrant: Importance and Procedure under CrPC
Search With Warrant
Section 93 of the CrPC empowers a judicial magistrate or a court to issue search warrants based on reasonable grounds for the belief that any place contains evidence related to a crime. The search location, the objects to be taken, and the authorised officer in charge of the search are all specified in the warrant. A search conducted with a warrant provides a higher degree of legitimacy and minimizes the risk of arbitrary intrusion into individuals’ privacy. When a search warrant may be granted is specified in Section 93. A warrant may first be issued against a person if the court suspects that person to whom the summons or order has been sent will not bring the item or document that is necessary to the proceedings. It may also be given if the Court is unsure about the identity of the potential owner of the document. The Court may designate a certain area or portion of the property where the inspection will last, and the person in charge of the inspection will abide by the Court’s order and not extend the inspection’s scope. Only the District Magistrate or Chief Judicial Magistrate can grant the search of a document that is in the custody of postal or telegraph authority.
And section 94 deals with searches that are conducted at locations where it is believed there may be stolen property or counterfeit papers. If after conducting an investigation or receiving information, a District Magistrate, Sub-divisional Magistrate, or a Magistrate of First Class believes that a location would have been used for the production of objectionable articles as mentioned and prescribed in this section, or if it would have been used for the deposit or sale of stolen property, they may authorize a Police Officer (above the rank of a constable) by warrant to enter such place with assistance if necessary.
In accordance with the warrant’s instructions, the police must conduct a search of the area and seize any potentially illegal or stolen material. When the criminal is escorted before the magistrate, he must either guard the information or give it to the magistrate. If he identifies anybody who could be connected to the deposit, sale, or production of the objectionable material or stolen property, he may take them into custody and subsequently bring them before the Magistrate. He may also dispose of the objectionable article in a secure location.
Coming to the articles/things which are considered as objectionable as per Section 94
- counterfeit coins, currency notes or stamps,
- forged documents
- false seals
- Pieces of metals prohibited under the Metal Tokens Act,1889 (1 of 1889), or brought in India as prohibited pursuant to Section 11 of Customs Act, 1962 (52 of 1962).
- Objects considered obscene under Section 292 of IPC (45 of 1860)
- Instruments that may be used for the production of the above objectionable articles.
Example: In the case of Anand Chintamani Dighe v. State of Maharashtra, The State Government confiscated a notice for the forfeiture of the book Mee Nathuram Godse Bolto ahe (I am Nathuram Godse speaking) in all forms, including the Gujarati translation, on the grounds that its publication would disturb public peace and foster discord or feelings of hostility, hatred, OR ill-will among various groups or communities.
A person whose imprisonment constitutes a crime may be searched under Section 97. A search warrant may be issued by any District, Sub-Divisional, or first-class Magistrate who has cause to think the same thing. The subject of the search warrant is required to search the prisoner, and if he does, he is required to bring the prisoner right away before the magistrate for further action. A female youngster under the age of 18 who has been kidnapped is also covered under Section 98’s details on how to get her back. The requirements for search warrants are outlined in Section 99.
Search Without Warrant
In certain situations, law enforcement authorities can conduct searches without a warrant under specific circumstances outlined in the CrPC. A police officer in charge of a station is given the authority to search any location under Section 165 if they have a reasonable suspicion that expensive items are likely to be hidden there. However, to ensure their legitimacy, such searches must be supported by reliable facts and are then subject to court review.
In India, searches without warrants are governed by particular sections of the Code of Criminal Procedure, 1973 (CrPC), which permit law enforcement officials to conduct searches in certain circumstances without first getting court authorization.
The CrPC recognizes several exceptions to the warrant requirement, which are outlined below:
Arrest without warrant (Section 41)
This law permits a police officer to conduct an arrest without a warrant if the officer has a reasonable suspicion that the suspect has committed or is about to commit a crime. The police officer conducting the arrest is entitled to search the suspect and take any relevant evidence in their possession.
Search of a place suspected to contain stolen property or any other article (Section 42)
A police officer has the right to search any place they have reason to suspect may contain stolen goods, forged documents, or other materials that might be used as evidence of a crime, in line with this paragraph. However, the search can only be carried out between the hours of daybreak and twilight, unless the circumstances demand a nighttime search.
Power to arrest and search without warrant (Section 43)
In accordance with this section, if there is any reason to believe that the individual committed one of the offences referred to in the Indian Penal Code and which carries a minimum term of imprisonment of 7 years, the police shall have the power to arrest him without a warrant. The police officer may also carry out an examination of the individual in connection with that arrest and take any evidence he obtains.
Search by a police officer empowered under Section 160 (Section 165)
In some cases, it is permissible under Section 165 for an officer in charge of the police station to carry out a search with no warrant. If the police have reason to suspect that the place is involved in stolen goods, unlawful weapons or any other item likely to be used as evidence of a crime, they may search it. However, the search must take place before two or more impartial witnesses, who must write and sign a list of the items taken during the search.
The fact that such rules confer certain powers to conduct searches without a search warrant must be kept in mind, even if they give rise to restrictions and safeguards as regards the prevention of abuse. In order to anticipate the discovery of relevant evidence or the commission of an offence, authorised officials must have a solid basis. The protocols established, as well as the criterion for fairness and reasonableness, shall also be complied with in these searches.
Legal Rights and Limitations in Search and Seizure under CrPC
- Presence of Witnesses: Section 100 of the CrPC mandates the presence of at least two independent witnesses during the execution of a search warrant. These witnesses act as safeguards against any potential misconduct or illegal behavior during the search. They provide impartial oversight, ensuring transparency and accountability in the search and seizure process.
- Procedure for Seizure: The CrPC sets out specific guidelines regarding the procedure for seizure of items during a search. According to Section 102, every officer conducting a search is required to create an inventory of the objects they take and give a copy to the person they took the items from or the person in control of the location. This inventory serves as a record and enables individuals to challenge any irregularities or discrepancies in the seizure process.
- Search of Women: To protect the dignity and privacy of women, Section 100(4) of the CrPC prohibits male officers from searching women, except in exceptional circumstances where the presence of a female officer is not immediately available. In these circumstances, the search must be carried out strictly in accordance with the principles of decency and respect for the person.
- Compensation for Unlawful Search and Seizure: According to Section 358 of the Criminal Procedure Code, anyone who have suffered harm or damage as a result of an unauthorized search or seizure are entitled to compensation. This clause prevents law enforcement officials from taking arbitrary or unlawful measures and makes ensuring that victims are fairly compensated for whatever harm they may have suffered.
Judicial Review And Remedies:
- Exclusion of Illegally Obtained Evidence: The principle of the exclusionary rule, as enshrined in the CrPC, prohibits the use of evidence obtained through illegal searches and seizures. Section 165(4) specifies that any evidence seized during a search conducted without proper authority or in violation of the prescribed procedures is rendered inadmissible in court. This provision acts as a safeguard against unlawfully obtained evidence and upholds the integrity of the judicial process.
- Writs and Petitions: If an individual believes that their rights have been violated during a search and seizure operation, they can seek legal recourse through writs and petitions. Before the relevant High Court or the Supreme Court, writs such as habeas corpus, mandamus, or certiorari can be filed in order to seek remedies for constitutional rights abuses or procedural errors.
- Judicial Scrutiny and Oversight: The role of the judiciary is crucial in ensuring the protection of individual rights during search and seizure operations. Courts conduct rigorous scrutiny to determine the validity and legality of searches and seizures. They examine whether the search was conducted with proper authority, based on credible information, and in compliance with the procedural safeguards provided by the CrPC.
Case Studies on Search and Seizure under CrPC
- State of Maharashtra vs. Tapas D. Neogy, In the event that these properties are specifically connected to the commission of the crime for which the investigation is being conducted, the police officer is authorized to seize the operation of such a bank account. It was upheld that “bank account” is to be ascertained as property under Section 102 of the Code.
- State of MP vs. Paltan Mallah, it was concluded that until illegally obtained evidence has significantly hurt the accused, it cannot be completely disproven. Such evidence has always been subject to acceptance by the Courts at their own discretion.
- Ramesh vs Laxmi Bai, A search warrant could not be obtained for a youngster who was in his father’s custody because it was determined that the boy should not be kept or regarded to be in an illegal detention.
Conclusion
Search and seizure powers granted under the Code of Criminal Procedure, 1973 provide law enforcement authorities with the necessary tools to investigate and prosecute criminal offenses. To avoid misuse and safeguard individual rights, these powers must be used with extreme discretion and within the bounds of the established legal framework. The CrPC also incorporates various safeguards, such as the requirement of warrants, the presence of witnesses, and the exclusionary rule, to ensure fairness, transparency, and accountability. By upholding these safeguards and promoting effective judicial oversight, the balance between law enforcement and individual rights can be maintained, ultimately fostering a just and equitable criminal justice system in India.
Reference
Criminal Procedure – R.V. Kelkar’s Criminal Procedure
Procedure relating to Search and Seizure under CrPC – iPleaders
